United States District Court, W.D. Louisiana, Shreveport Division
HORNSBY MAGISTRATE JUDGE
MAURICE HICKS, JR. UNITED STATES DISTRICT JUDGE
the Court is Petitioner Garland D. Miller's
(“Miller”) “Petition for Writ of Error
Coram Nobis or in the Alternative Motion to Amend Judgment
Pursuant to Fed.R.Civ.P. 60” (Record Document 170).
Miller seeks the following relief in the instant Petition:
(1) reversal of his conviction for tax evasion; (2) an
vacating the restitution imposed upon Miller as part of the
sentencing for this conviction and ordering disgorgement of
restitution paid pursuant to sentencing; and (3) an order
granting relief from the Court's judgment of conviction
and sentence under Federal Rule of Civil Procedure 60(b).
See Record Document 170. For the reasons contained
in the instant Memorandum Ruling, Miller's Petition is
AND PROCEDURAL BACKGROUND
March 28, 2007, a federal grand jury issued an indictment
against Miller on two counts of tax evasion in violation of
26 U.S.C. § 7201. See Record Documents 1 and 2.
A jury found Miller guilty on both counts on July 10, 2008.
See Record Document 82. On October 31, 2008, the
Court sentenced Miller to 48 months in prison and ordered him
to pay (1) restitution of $55, 470.94 to his former employer
and (2) $89, 130.35 in outstanding tax obligations.
See Record Documents 93 and 94. Miller appealed his
conviction, but the Fifth Circuit affirmed his conviction on
November 20, 2009. See United States v. Miller, 588
F.3d 897 (5th Cir. 2009).
February 7, 2011, Miller filed a Motion to Vacate his
Sentence under 28 U.S.C. § 2255. See Record
Document 114. On November 21, 2011, this Court denied
Miller's Motion to Vacate. See Record Documents
146 and 147; see United States v. Miller, 2011 U.S.
Dist. LEXIS 134399 (W.D. La. 2011). On May 7, 2012, the Fifth
Circuit affirmed this Court's denial of a Certificate of
Appealability on that Motion. See Record Document
161. On June 13, 2012, Miller filed a second § 2255
Motion, styled as a Petition for Writ of Error Coram Nobis.
See Record Document 162. On June 25, 2012, the Court
denied that Motion. See Record Document 165. On May
15, 2013, the Fifth Circuit affirmed this Court's denial
of Miller's second § 2255 Motion. See
Record Document 169.
December 15, 2015, Miller filed the instant “Petition
for Writ of Error Coram Nobis or in the Alternative Motion to
Amend Judgment Pursuant to Fed.R.Civ.P. 60.”
See Record Document 170. The Government responded to
Miller's Motion on January 26, 2016. See Record
Document 174. Miller filed a reply brief on February 5, 2016.
See Record Document 175.
writ of error coram nobis is the sole remedy available to a
person convicted of a crime seeking to vacate or modify a
criminal conviction after the person is no longer in custody.
See United States v. Morgan, 346 U.S. 502, 505-512
(1954); see United States v. Miller, 546 Fed.Appx.
335, 336 (5th Cir. 2013). The writ of error coram nobis is
available under the authority of the “all-writs section
of the Judicial Code, ” 28 U.S.C. § 1651(a).
Morgan, 346 U.S. at 506. This writ is an
extraordinary remedy. Id. at 511. A petition or
motion for a writ of coram nobis is “a step in the
criminal case and not . . . the beginning of a separate civil
proceeding.” Id. at 505 n.4.
obtain a writ of error coram nobis, a petitioner must
demonstrate that: (1) he or she suffers from continuing civil
disabilities as a result of his or her criminal conviction;
(2) he or she exercised reasonable diligence in seeking
relief from his or her conviction; and (3) unless relief is
granted, there will be a complete miscarriage of justice.
See Morgan, 346 U.S. at 505-12; see Monroe v.
United States, 2005 U.S. Dist. LEXIS 37601 at *14-15
(E.D. Tex. 2005) (synthesizing elements for issuance of the
writ under Supreme Court and Fifth Circuit precedent). In
deciding a petition for a writ of error coram nobis,
“it is presumed the proceedings [in which the
petitioner was convicted] were correct, ” and the
burden of overcoming this presumption rests upon the
petitioner.” Morgan, 346 U.S. at 512.
makes a number of arguments in support of his Petition,
primarily relating to the civil disabilities he has suffered
and the errors he alleges this Court made in convicting him
of tax evasion. See Record Document 170. The
Government asserts that none of these arguments have merit.
See Record Document 174.
The Court Assumes Without Deciding that Miller Alleged
Sufficient Civil Disabilities ...